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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

These unfair labor practice cases are before the Authority on
exceptions filed by the Respondent to the attached Decisions of the
Administrative Law Judge (the Judge). The General Counsel filed an opposition
to the Respondent's exceptions in both cases. In Case No. 6-CA-70732, the
General Counsel also filed cross-exceptions and the Respondent filed an
opposition to the General Counsel's cross-exceptions. Because the underlying
facts in these cases are the same and because the applicable law and precedent
applicable to the complaints is the same, we have consolidated these cases for
decision. The Respondent, the Union, and the General Counsel each submitted
supplemental briefs in both cases.

The complaint in Case No. 6-CA-70732 alleged that the Respondent
violated section 7116(a)(1) of the Federal Service Labor-Management Relations
Statute (the Statute) by interfering with, restraining and coercing bargaining
unit employees in the exercise of their rights under section 7102 of the
Statute by prohibiting bargaining unit employees from wearing a Union lapel pin
during their duty hours.

The complaint in Case No. 6-CA-80175 alleged that the Respondent
interfered with, restrained and coerced employees in the exercise of their
statutory rights by taking into consideration their Union activity when issuing
to them an annual Officer Corps Rating in violation of section 7116(a)(1) of
the Statute; and discriminated against employee Robert J. Marren by considering
his Union activity when issuing to him his appearance rating as part of his
annual Officer Corps Rating in violation of section 7116(a)(1) and (2) of the
Statute.

The Judge found that the Respondent's conduct in both cases violated
the Statute as alleged. Pursuant to section 2423.29 of the Authority's Rules
and Regulations and section 7118 of the Statute, we have reviewed the rulings
of the Judge made at the hearings and find that no prejudicial error was
committed. The rulings are affirmed. Upon consideration of the Judge's
decisions and the entire records, and consistent with our decision in US
Immigration and Naturalization Service, United States Border Patrol, San Diego
Sector, San Diego, California, 38 FLRA 701 (1990) (INS 3), we adopt
the Judge's decisions for the reasons set forth below.

II. Background

A. Case No. 6-CA-70732

The Union represents all nonprofessional border patrol agents of the
Respondent. The Union's Executive Vice President, Robert J. Marren, is a border
patrol agent at the Fabens Station Office. He serves as a chief steward there.
He wore a Union lapel pin on his agent's uniform in September 1987 at a
labor-management relations meeting.(1) Judge's Decision
at 3; Hearing Transcript at 49. The Union lapel pin is a glossy shield-shaped
emblem, 1/2 inch in width by 3/8 inch in height, with red, blue, and white
stripes, and gold trim, and has the abbreviation "AFGE" on it in small letters.
Judge's Decision at 3; General Counsel's Exhibit 2; Hearing Transcript at
13.

Subsequently, on September 15, 1987, Marren's second-line supervisor,
Ernesto Martinez, Jr., told Marren to remove the Union lapel pin from his
uniform. Martinez had been instructed by Chief Patrol Agent Williams, through
Assistant Chief Patrol Agent Blackwell, to tell Marren to remove the Union
lapel pin because Respondent's Administrative Manual did not allow any
decorations on the uniform. Marren removed the pin and filed the underlying
unfair labor practice charge on September 21, 1987. A complaint in this case
was issued on January 22, 1988.

B. Case No. 6-CA-80175

All officer corps employees receive an annual Office Corps Rating. On
November 21, 1987, Marren's first-line supervisor, Sterling Smith, issued
Marren an Officer Corps Rating. Smith rated Marren "Very Good" in the category
of "Appearance." Martinez, on or about December 1, 1987, rated Marren as "Good"
in the category of "Appearance." Marren then discussed the lower rating with
Martinez. Martinez told Marren that the reason for the lower rating was that
Marren had worn a Union pin on his uniform and that his mustache was longer
than allowed under the regulations. On January 15, 1988, the Union filed an
unfair labor practice charge, and a complaint in this case was issued on May
25, 1988.

III. Related FLRA and Court Decisions

The Authority issued United States Immigration and Naturalization
Service, Port of Entry, San Ysidro, California, 25 FLRA 447 (1987) (INS
1) on February 2, 1987, finding that the Immigration and Naturalization
Service (the Agency) violated section 7116(a)(1) of the Statute by prohibiting
an immigration inspector from wearing a Union lapel pin on his uniform.
Id. at 452. On February 4, 1987, the Authority reached a similar
conclusion in United States Department of Justice, Immigration and
Naturalization Service, Port of Entry, San Ysidro, California, 25 FLRA 490
(1987) (INS 2) (Chairman Calhoun dissenting), where it found that the
Agency's prohibition against wearing a Union penholder or other Union insignia
on immigration inspector uniforms violated section 7116(a)(1) of the Statute.
The United States Court of Appeals for the Ninth Circuit reversed the
Authority's decisions in INS 1 and INS 2 in Immigration and
Naturalization Service v. FLRA, 855 F.2d 1454 (9th Cir. 1988) (INS v.
FLRA). A more detailed discussion of these cases is contained in INS
3, 38 FLRA at 702, 710-18.

Subsequently, the Supreme Court issued its decision in Department of
the Treasury, Internal Revenue Service v. FLRA, U.S. , 110
S. Ct. 1623 (1990) (IRS v. FLRA). The Court's decision discussed, among
other things, the relationship between section 7106(a) of the Statute and other
sections of the Statute, as well as provisions of law and regulation outside
the Statute.

IV. Administrative Law Judge's Decisions

The same Judge conducted the hearings in both cases and issued both
decisions. The Judge stated that the Authority has ruled that employees have
the right to wear Union insignia at the workplace, in the absence of a showing
that the wearing of such insignia interferes with the purpose of the uniform.
The Judge found that in INS 1 the Authority held that a pin, identical
to the Union lapel pin in these cases, was so small and unobtrusive as to
preclude interference with work or confusion of the public. Judge's Decision at
4.

The Judge acknowledged that INS 1 and INS 2 were reversed
in INS v. FLRA. However, the Judge stated that because the Authority's
decisions are binding on him, he was constrained to conclude that the
Respondent violated section 7116(a)(1) of the Statute as to Case No.
6-CA-70732, and that the Respondent violated section 7116(a)(1) and (2) of the
Statute as to Case No. 6-CA-80175.

In Case No. 6-CA-80175, the Judge noted that Martinez also told Marren
that his appraisal was influenced by Marren's failure to trim his mustache. The
Judge concluded, however, that "it appears that the complaint from the Chief
Patrol Agent concerned Marren's wearing of the Union pin on his uniform, and
this was the real cause of the action taken against the employee." Judge's
Decision at 6 n.6.

V. Positions of the Parties

A. Case No. 6-CA-70732

1. The Respondent's Exceptions

Initially, the Respondent argues that the Authority is precluded by the
principle of defensive collateral estoppel from prosecuting the complaint in
this case. The Respondent argues that where there is a mutuality of parties and
where the issue to be litigated is identical to an issue already decided,
collateral estoppel applies. The Respondent asserts that the same issue and
parties involved in this case were present in INS v. FLRA, and,
therefore, collateral estoppel is applicable.

Next, the Respondent excepts to the Judge's conclusion that section
7102 gives Federal employees who are in routine contact with the public, and
more particularly uniformed Federal law enforcement officers, a protected right
to wear Union insignia when they are not performing Union duties. The
Respondent argues that even if section 7102 could be construed to give such
employees a protected right to wear Union insignia, that right is restricted by
management's rights to determine its mission, organization, internal security
practices, and the methods and means that it will use to carry out its work,
under section 7106(a)(1) and (b)(1) of the Statute. The Respondent argues that
the Judge erred in refusing to find that the facts in this case presented
"special circumstances," within the meaning of the Authority's established
precedent, that would warrant the Respondent's actions at issue in this
case.

To support this argument, the Respondent contends that the border
patrol agents' mission, command structure, day-to-day duties, uniforms and
firearms requirements are more military in nature than the working conditions
of its inspectors. The Respondent argues that the "paramilitary" nature of the
agents' assignments requires a special espritdecorps on
which each agent relies for mutual cooperation and support. Exceptions at 28.
The Respondent states that the mission requirements of the Border Patrol demand
that agents are, and appear to be, totally neutral when on duty. The Respondent
also points to the El Paso Sector's consistent practice of enforcing the
requirement that uniforms be devoid of extraneous decoration. The Respondent
argues that the "special circumstances" present in this case are similar to
those described by the Authority in decisions involving military activities
where the Authority found that "special circumstances" existed. Exceptions at
28-37.

Finally, the Respondent argues that even if section 7102 could be
construed to provide employees a protected right to wear Union insignia, the
Union waived that right by negotiating Article 25 of the parties' master
agreement regarding uniforms and uniform inspections. Exceptions at 40.

2. The General Counsel's Opposition

The General Counsel argues that the Respondent's exceptions raise no
new arguments and that the Authority should find that the Respondent's policy
violates the Statute by interfering with, restraining and coercing bargaining
unit employees in the exercise of their rights to wear a Union lapel pin during
their duty hours, while performing both representational/Union duties and their
official working duties. General Counsel's Opposition at 1, 7.

More specifically, the General Counsel argues that the Respondent's
collateral estoppel argument is inapplicable. The General Counsel states that
the criteria applicable to collateral estoppel--same issues of fact and
law--are not met in this case. The General Counsel contends that the Respondent
has previously argued the opposite--that there are significant differences
between this case and the facts in INS 1 and INS 2. General
Counsel's Opposition at 2. Additionally, the General Counsel argues that the
previous cases have not involved an employee's performance of representational
duties, which the General Counsel argues is present here. Id. at 3.

The General Counsel argues that Marren was engaged in protected
activity when he was ordered to remove the Union lapel pin. The General Counsel
contends that Marren wore the Union lapel pin while performing representational
duties, such as attending a labor-management meeting and a grievance meeting.
The General Counsel states that Martinez told Marren shortly thereafter to
remove the Union lapel pin. Therefore, the General Counsel contends that this
case involves a bargaining unit employee's attempt to wear a Union lapel pin
during performance of representational duties, which constitutes protected
activity. General Counsel's Opposition at 3-5.

The General Counsel also argues that any management right the
Respondent may have regarding uniform requirements under section 7106(a)(1) and
(b)(1) of the Statute must be balanced with an employee's right under section
7102.

Finally, the General Counsel asserts that the Respondent's argument
that the Union contractually waived the employees' right to wear the Union
lapel pin is without merit. The General Counsel contends that the Union cannot
waive these employee rights in negotiations. General Counsel's Opposition at
7.

3. The General Counsel's Cross-Exceptions

The General Counsel argues that the Judge improperly failed to conclude
that Marren wore the Union lapel pin during the course of performing
representational duties and that the Respondent's policy prohibited the
employee from wearing the Union lapel pin during the performance of
representational duties. Cross-Exceptions at 1.

The General Counsel argues that the use of the term "duty hours" in the
complaint covers the duty time during which representational duties and other
protected activities occur. The General Counsel contends that the term "working
hours" would have been substituted for "duty hours" if the complaint had been
limited to the time during which employees are performing their official
duties. Cross-Exceptions at 2 n.1. Moreover, the General Counsel states that if
the Authority does not consider the wearing of a Union lapel pin during
performance of representational duties, the same issue will arise in subsequent
litigation. Therefore, the General Counsel argues that the complaint required
the Judge to consider the effect of the Respondent's policy applied to
bargaining unit employees' performance of representational duties.

4. The Respondent's Opposition

The Respondent argues that the complaint in this case did not notify
the Respondent that it was being prosecuted for denying a Union officer any
right under section 7102 of the Statute. Moreover, the Respondent argues that
even if this allegation were included in the complaint, the record developed in
the case does not support this allegation. Respondent's Opposition at 2, 5.

B. Case No. 6-CA-80175

1. The Respondent's Exceptions

The Respondent states that the merits of this case may be addressed
only if the Authority is not barred by collateral estoppel or issue preclusion
from further prosecuting this complaint. Exceptions at 1. The Respondent
contends that this is not a case in which the gravamen of the complaint is that
the Respondent interfered with or discriminated against the employee acting in
his role as a Union representative. Exceptions at 30.

The Respondent asserts that it was privileged to enforce its
regulations barring its border patrol agents from wearing personal
ornamentation on their uniforms so as to preclude them from wearing Union
emblems. Put another way, the Respondent excepts to the Judge's finding that by
enforcing its regulations, the Respondent interfered with the agents', and
specifically Marren's, right under section 7102 to engage in protected activity
and that its action constituted a violation of section 7116(a)(1) and (2) of
the Statute. The Respondent argues that the court's decision in INS v.
FLRA should be controlling and that the Authority should find that the
Respondent did have the right to enforce its uniform requirements prohibiting
unauthorized ornaments from being worn on the employees' uniforms. Exceptions
at 7-14.

The Respondent also asserts that it had a right under section
7106(a)(1) and/or (b)(1) of the Statute to enforce the uniform regulations
which require its border patrol agents to refrain from wearing Union insignia,
as well as other forms of ornamentation, on their uniforms. The Respondent
excepts to the Judge's finding that by lowering Agent Marren's rating on the
"Appearance" section of his annual Officer Corps rating, it violated the
Statute. The Respondent maintains that the INS v. FLRA decision upholds
management's rights to determine uniform requirements and to enforce those
requirements. The Respondent argues that Marren had no right to wear the Union
insignia on his uniform, and any other conclusion would be inconsistent with
the Ninth Circuit's decision in INS v. FLRA as well as FLRA precedent
involving National Guard technicians. Exceptions at 15-22.

Finally, the Respondent contends that if Federal employees have a
protected right under section 7102 of the Statute to wear Union emblems on
their uniforms, the facts in this case regarding the specific nature of the
Border Patrol's mission and organization, and the nature of the border patrol
agent's duties, nevertheless present "special circumstances" which permit the
Respondent to enforce its uniform regulations barring personal ornamentation.
Exceptions at 22-29.

2. The General Counsel's Opposition

The General Counsel contends that Agent Marren's rating was lowered
because he wore the Union lapel pin during his duty hours and during
representational activity. Opposition at 3. The General Counsel argues that the
Union lapel pin in question is innocuous and inconspicuous, that it is
fashioned as a patriotic symbol, and does not degrade or take away from the
uniform of the border patrol agents. Id.

The General Counsel argues that even if it is determined that the
wearing of the small Union lapel pin is not a protected right, the Respondent's
conduct in lowering Marren's rating would still be inappropriate because the
supervisors admitted seeing Marren wearing the lapel pin only for a brief
duration. The General Counsel argues that such a brief action does not warrant
a lowered rating. Opposition at 4. The General Counsel also argues that even if
wearing a Union lapel pin is not a protected right during duty time, Agent
Marren's rating should not have been lowered for wearing the Union lapel pin at
a labor-management relations meeting. Opposition at 5.

The General Counsel also argues against the Respondent's contention
that collateral estoppel and issue preclusion apply to the processing of this
complaint in addition to Case No. 6-CA-70732. Opposition at 6.

C. Parties' Additional Submissions

On April 23, 1990, the Authority issued an Order directing the parties
to file supplemental briefs concerning the effect if any, of the United States
Supreme Court's decision in IRS v. FLRA on the issue in these cases.
More specifically, the parties were requested to address the relationship
between the Respondent's rights enumerated under section 7106(a) and (b) and
rights of employees and the Union under sections 7102 and 7106(b)(2) and (3) of
the Statute. The Respondent, the Union, and the General Counsel each submitted
consolidated supplemental briefs in these cases and in Case No. 8-CA-70694
(INS 3). The positions of the parties are fully set forth in our
decision in INS 3. SeeINS 3, 38 FLRA at 705. To the
extent that the parties submitted arguments regarding constitutional claims,
those arguments are beyond the scope of the requested information and beyond
the case presented to the Judge, we will not consider those arguments in this
decision. SeeINS 3, 38 FLRA at 705 n.2.

VI. Analysis and Conclusions in Case No. 6-CA-70732

A. The Cross-Exceptions

The General Counsel's cross-exceptions assert that the Judge erred in
failing to find that Marren wore the Union lapel pin during the performance of
representational duties on behalf of bargaining unit employees and that the
Respondent's policy prohibited Marren from wearing the Union lapel pin during
representational activities. We deny the cross-exceptions for the following
reasons.

The complaint alleges that "[s]ince on or about September 15, 1987, and
continuing to date, Respondent has interfered with, restrained, and coerced
bargaining unit employees in the exercise of their rights under 5 USC 7102 by
prohibiting bargaining unit employees from wearing a [U]nion lapel pin during
their duty hours." General Counsel's Exhibit 1(g), paragraph 8. The complaint
is silent regarding bargaining unit employees' wearing the Union lapel pin
during the performance of representational duties or protected activities.
Therefore, the Respondent did not have notice that this allegation was intended
to be encompassed in the complaint. SeeU.S. Government Printing
Office, 23 FLRA 35, 38 (1986) (where an allegation was not encompassed by
the complaint and thus was not before the Judge, the Authority concluded that
the violation found by the Judge in this regard must be dismissed).
CompareU.S. Department of Health and Human Services, Health Care
Financing Administration, 35 FLRA 491, 494 (1990) (the Authority held that
where both parties understood the subject of the dispute and, at the hearing,
presented evidence and witnesses relevant to the issue of the dispute, a mere
ambiguity in the language of the complaint does not remove the issue from being
encompassed by the complaint).

The complaint did not specify that the Union lapel pin was being worn
during the performance of representational duties. Instead, the General Counsel
argues that use of the words "duty hours" in the complaint signifies the
inclusion of representational duties. In our view, the General Counsel's
assertion that the complaint includes the more specific issue of wearing a
Union lapel pin during performance of representational duties improperly
attempts to expand the complaint after the hearing. SeePatent Office
Professional Association v. FLRA, 872 F.2d 451 (D.C. Cir. 1989),
affirming in part and reversing and remanding as to other matters sub
nom.U.S. Patent and Trademark Office, 31 FLRA 952 (1988).

The complaint was insufficient to put the Respondent on notice that the
General Counsel intended to raise the issue of interfering with a Union
officer's rights under section 7102 while performing representational duties.
Moreover, these issues were not raised during the hearing. Therefore, the
General Counsel's cross-exceptions are denied.

B. Exceptions

1. Collateral Estoppel Does Not Apply

The Respondent argues that the doctrine of collateral estoppel prevents
the consideration of this case because the matter has already been decided by
the Ninth Circuit in INS v. FLRA. For the following reasons, we conclude
that the doctrine of collateral estoppel does not apply to this case and does
not block consideration of the issues on their merits.

The doctrine of collateral estoppel generally applies to preclude
relitigation of both issues of law and issues of fact if those issues were
conclusively determined in a prior action involving the same parties. United
States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The doctrine of
mutual defensive collateral estoppel is applicable against the Government to
preclude relitigation of the same issue already litigated against the same
party in another case involving virtually identical facts. SeeDepartment of the Treasury, U.S. Customs Service, Washington, D.C. v.
FLRA, 762 F.2d 1119 (D.C. Cir. 1985) (opinion by then Circuit Judge
Scalia); Brown, Collateral Estoppel Effects of Administrative Agency
Determinations: Where Should Federal Courts Draw the Line?, 73 Cornell L.
Rev. 817 (1988).

A review of the record establishes that different facts are present in
this case from those in INS 1 and INS 2. The INS 1 and
INS 2 cases involved Immigration and Naturalization Service (INS)
inspectors, who generally are unarmed and who are stationed at fixed posts.
SeeINS 1, 25 FLRA at 457; INS 2, 25 FLRA at 497. In
contrast, the employees involved in this case are INS agents who are armed when
on duty. Hearing Transcript at 10. The agents are not stationed at fixed posts,
but rather work on roving patrols or on surveillance of the international
border. Often the agents are in concealed locations until they are ready to
apprehend suspects. The agents also conduct searches of businesses and farms
employing aliens to ensure that only authorized aliens are being employed.
Hearing Transcript at 8-9, 44-45, 70-71, Respondent's Exhibit 6.

Moreover, we note that in the hearing before the Judge, the Respondent
did not raise the issue of collateral estoppel. Section 2429.5 of the
Authority's Rules and Regulations precludes the Authority from considering any
issue that was not presented before the Judge. Therefore, the issue of
collateral estoppel is not properly before us.

However, even if that issue were properly before us, we note that the
Respondent argued that the factual situation in this case was different in many
ways from the INS 1 and INS 2 cases. The Respondent relied on the
distinctions as justification for reaching a result opposite to the holdings in
INS 1 and INS 2. The Respondent repeats the differences it
perceives between the facts here and the facts in the earlier cases.
Respondent's Exceptions at 27-30.

The Respondent, therefore, has argued previously that the facts in this
case are distinguishable from the facts found in INS 1 and INS 2,
and now argues, in support of its defensive collateral estoppel contention,
that the facts in this case are similar to those in INS 1 and INS
2. We reject this claim, because, as we have discussed above, the facts
present in this case are different from those in INS 1 and INS 2,
and find that the doctrine of defensive collateral estoppel does not apply in
this case.

2. The Merits

For the reasons set forth below, we conclude that the Respondent
violated the Statute when Martinez ordered INS Agent Marren to remove a Union
lapel pin from his uniform.

In INS 3, we examined the interplay of section 7106(a) and
section 7106(b)(1) with section 7102 of the Statute. In that decision, we also
considered the effect of the Supreme Court's IRS v. FLRA decision, which
addressed the relationship between management rights enumerated in section
7106(a) of the Statute and other sections of the Statute, as well as provisions
of law and regulation outside the Statute. In INS 3, we reaffirmed our
view that section 7102 of the Statute grants Federal employees the right to
wear Union insignia at the workplace, unless special circumstances exist. In
determining whether special circumstances exist, we will look to the factors
present in each case.

In INS 3, we considered whether border patrol agents, like the
employees in these cases, who wore uniforms, pursuant to the Agency's right
under section 7106(b)(1) to determine the methods and means of performing its
work, had a right to wear Union insignia on the uniform at the workplace. We
concluded that special circumstances did not exist in INS 3 and,
therefore, that the border patrol agents did have a right to wear a Union lapel
pin on their uniforms at the workplace.

Most of the arguments raised in these cases were raised by the parties
in INS 3. Because we have dealt with those arguments fully in our
decision in INS 3, we need not repeat them here. SeeINS
3, 38 FLRA at 706-21.

In its exceptions and its supplemental brief, the Respondent stated
that the right to require that uniforms be unadorned derives from the section
7106(a) right to determine the Respondent's internal security practices.
See Respondent's Supplemental Brief at 3 n.1. The Respondent mentioned
the Respondent's right to determine its internal security practices in passing
in its Exceptions at 18, and in a hypothetical example in its Exceptions at 21.
The Respondent did not raise an internal security argument before the Judge.
See Respondent's Memorandum to the Judge at 5, 9, 10, 14. The Respondent
has not developed or presented an argument that its right to determine its
internal security practices is involved in this case through these brief
references to internal security practices. Moreover, the Authority will not
consider evidence offered by a party that was not presented in the proceedings
before the Judge. See section 2429.5 of the Authority's Rules and
Regulations. Accordingly, even if an internal security practices argument were
properly raised before us, we reject the Respondent's claim that the wearing of
the Union lapel pin is inconsistent with the right to determine its internal
security practices under section 7106(a)(1) of the Statute.

The Respondent also argues that even if employees have a protected
right to wear Union insignia under section 7102, the Charging Party waived the
right by agreeing to Article 25 of the Master Agreement, regarding uniforms and
uniform inspections. The Respondent states that Article 25 provides, in
part:

Supervisory officers will be responsible for conducting informal daily
visual inspections of the officers in their respective units or stations. If
uniform deficiencies are noted, immediate corrective action will be
taken.

It is well established that any waiver of rights must be clear and
unmistakable. SeeDepartment of Health and Human Services, Social
Security Administration, Southeastern Program Service Center, 21 FLRA 748,
752 (1986). It is not clear that the Union could waive employees' rights
emanating from section 7102 relating to the wearing of Union insignia.
Seeid. However, even assuming that the Union could waive
employees' rights with regard to this matter, nothing in the cited portion of
Article 25 demonstrates that the Union clearly and explicitly waived its right
to wear Union insignia on uniforms. See Respondent's Exhibit 4.
Accordingly, we find that the Respondent's argument that the Charging Party
waived its right to bargain by agreeing to Article 25 of the Agreement is
without merit. Therefore, this exception is denied.

We find that the underlying circumstances in INS 3 are
indistinguishable from the circumstances in this case. Moreover, nothing in the
Respondent's additional argument warrants any different outcome in this case.
Accordingly, consistent with the reasons fully set forth in INS 3, we
find that special circumstances do not exist in this case which would prohibit
wearing Union insignia by the border patrol agents, including Agent Marren. We
find that the Respondent violated section 7116(a)(1) of the Statute by
prohibiting Agent Marren from wearing a Union lapel pin during duty hours.

VII. Analysis and Conclusions in Case No. 6-CA-80175

In INS 3, we reaffirmed our view that the right to wear Union
insignia stems from section 7102 of the Statute, which guarantees to each
employee "the right to form, join, or assist any labor organization," and
provides that "each employee shall be protected in the exercise of such right,"
unless special circumstances exist. We have determined in Case No. 6-CA-70732
that special circumstances do not exist to bar wearing Union insignia by the
border patrol agents, including Agent Marren, who are involved in both of these
cases. Therefore, Agent Marren had a right to wear Union insignia on his
uniform. Accordingly, the Respondent improperly lowered Agent Marren's rating
in the category of "Appearance" during the 1987 Officer Corps Rating for
wearing a Union lapel pin on his uniform.

The exceptions raised by the Respondent in Case No. 6-CA-80175
duplicate arguments raised previously in Case No. 6-CA-70732. Because those
arguments have already been addressed above and in INS 3, we find it
unnecessary to repeat that discussion here.(2)

Accordingly, consistent with the reasons fully set forth in INS
3, and our decision set forth above in Case No. 6-CA-70732, we adopt the
Judge's decision in Case No. 6-CA-80175 that the Respondent violated section
7116(a)(1) and (2) of the Statute by lowering Agent Marren's performance rating
in the category of "Appearance" during the 1987 Officer Corps Rating because he
wore a Union lapel pin on his uniform during duty hours.(3)

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations Statute, the
United States Department of Justice, United States Immigration and
Naturalization Service, United States Border Patrol, El Paso, Texas, shall:

1. Cease and desist from:

(a) Interfering with, restraining, or coercing its employees by
prohibiting Robert J. Marren, or any other border patrol agent, from wearing
the American Federation of Government Employees, AFL-CIO, Union lapel pin or
similar Union insignia on his uniform during duty hours.

(b) Discriminating against Robert Marren or any other employee, by
considering as part of the annual Officer Corps Rating that Robert J. Marren,
or any other employee, wore the American Federation of Government Employees,
AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty
hours.

(c) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of rights assured by the Federal service
Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Permit Robert J. Marren, or any other border patrol agent, to wear
the American Federation of Government Employees, AFL-CIO, Union lapel pin or
similar Union insignia on his uniform during duty hours.

(b) Rescind the December 1, 1987 "Appearance" rating of Robert J.
Marren prepared by Supervisor Ernesto Martinez, Jr.; remove it from his
personnel file; and prepare a new Officer Corps Rating for 1987 for Robert J.
Marren that restores the rating to "very good" as to his appearance, which
rating does not consider that he wore the American Federation of Government
Employees, AFL-CIO, Union lapel pin on his uniform during duty hours.

(c) Post at its facilities copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Chief Patrol Agent and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with, restrain or coerce our employees by
prohibiting Robert J. Marren, or any other border patrol agent, from wearing
the American Federation of Government Employees, AFL-CIO, Union lapel pin or
similar Union insignia on his uniform during duty hours.

WE WILL NOT discriminate against Robert Marren, or any other employee,
by considering as part of the annual Officer Corps Rating that Robert J.
Marren, or any other employee, wore the American Federation of Government
Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform
during duty hours.

WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

WE WILL permit Robert J. Marren, or any other border patrol agent, to
wear the American Federation of Government Employees, AFL-CIO, Union lapel pin
or similar Union insignia on his uniform during duty hours.

WE WILL rescind the December 1, 1987 "Appearance" rating of Robert J.
Marren prepared by Supervisor Ernesto Martinez, Jr.; remove it from his
personnel file; and prepare a new Officer Corps Rating for 1987 for Robert J.
Marren that restores the rating to "very good" as to his appearance, which
rating does not consider that he wore the American Federation of Government
Employees, AFL-CIO, Union lapel pin on his uniform during duty hours.

______________________________(Activity)

Dated:________ By:____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other
material.

2. In Case No. 6-CA-80175, the General Counsel makes a
motion to strike a document filed by the Respondent on May 4, 1990, which
objected to material in the General Counsel's Opposition in this case. The
"objectionable" material dealt with an unrelated matter, Case No. 6-CA-80004.
Because the matter deals with an unrelated case, we will not address either
party's contention in our decision here.

3. Consistent with the Judge's conclusion that the real
cause of the lowered rating for "Appearance" on Agent Marren's 1987 rating was
his wearing of the Union lapel pin, we will modify the Judge's recommended
order to restore the rating to "very good" for Marren's Officer Corps Rating
for 1987.